Featured Issue: Asylum Under Trump 2.0
On the first day of his second term, President Trump suspended all entries at the U.S. Southern Border for asylum seekers. Since then, the Administration has implemented sweeping restrictions that shut America’s doors to people fleeing persecution. These policies violate federal law, erode constitutionally protected due process, exacerbate the asylum backlog, and give those seeking safety an increasingly narrow path to protection.
Left unchecked by Congress, these policies will have dire consequences for both asylum seekers and the integrity of our legal system. Asylum seekers—especially those without access to counsel—are at grave risk of being returned to harm.
It doesn’t have to be this way. The Administration can maintain order at U.S. borders and effectively manage migration without sacrificing fairness and adherence to the law. With more trained asylum officers, a streamlined legal process, legal representation for asylum seekers, and more effective coordination between relevant agencies, the U.S. can establish a safe, orderly, and humane asylum system.
Browse the Featured Issue: Asylum Under Trump 2.0 collection
D.C. Circuit Affirms Dismissal of Most Claims Brought by Detained Mothers and Children Challenging Credible Fear Regulations
The court affirmed the district court’s conclusion that the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) barred its review of 10 of 11 alleged policies, because the policy was unwritten or challenges to it were untimely. (M.M.V., et al. v. Garland, et al., 6/18/21)
CA11 Finds BIA Failed to Properly Reconsider Discretionary Denial of Asylum Under 8 CFR §1208.16(e)
The court held that when an applicant is discretionarily denied asylum but granted withholding of removal and the IJ fails to reconsider its discretionary denial of asylum, the BIA must remand for the IJ to conduct this required reconsideration. (Thamotar v. Att’y Gen., 6/17/21)
CA3 Upholds BIA’s Denial of Motion to Reopen CAT Claim Based on Changed Country Circumstances in Jamaica
The court found that the BIA did not abuse its discretion in dismissing petitioner’s motion to reopen as untimely, finding that her motion did not contain any evidence that Jamaican officials would likely acquiesce to her torture if she were returned to Jamaica. (Darby v. Att’y Gen., 6/17/21)
DOJ Vacates Matter of A-B- and Matter of A-B-II
DOJ vacated Matter of A-B- and Matter of A-B-II and stated that immigration judges and the BIA should no longer follow these decisions when adjudicating pending or future cases. Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021)
DOJ Vacates Matter of L-E-A- II
DOJ vacated Matter of L-E-A- II in its entirely and immigration judges and the BIA should no longer follow Matter of L-E-A- II when adjudicating pending and future cases. Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021)
DOJ Issues Memo on the Impact of Attorney General Decisions in Matter of L-E-A- and Matter of A-B-
DOJ issued a memo to the Civil Division’s Office of Immigration Litigation on the impact of Attorney General Merrick Garland’s vacation of Matter of L-E-A- (L-E-A- II), Matter of A-B- (A-B- I), and Matter of A-B- II).
AG Garland Vacates Asylum Precedents That Harmed Victims of Violence
AG Garland vacated decisions in Matter of A-B- and Matter of L-E-A-, both of which had arbitrarily overturned years of established case law. By vacating these two decisions, the AG has restored access to asylum for many people fleeing persecution abroad.
Resources Related to Lawsuit Challenging New DHS Asylum EAD Rules
Find resources related to Casa de Maryland, Inc. v. Wolf, a lawsuit filed by immigration advocacy organizations challenging two new DHS final rules pertaining to employment authorization documents (EADs) for asylum seekers.
Negligence and Mayhem – We Need to Phase Out the Use of Migrant Detention
In this blog post, Sarah Owings shares the realities of what immigration detainees face and why she wants “you to push for fair and humane ways to process people's' immigration paperwork, outside of detention“ so the detention machine can be shut down entirely.
BIA Issues Ruling on Changed Circumstances Exception to the One-Year Filing Bar for Asylum Applications
The BIA ruled that a mere continuation of an activity in the United States that is substantially similar to the activity from which an initial claim of past persecution is alleged cannot establish changed circumstances under INA §208(a)(2)(D). Matter of D-G-C-, 28 I&N Dec. 297 (BIA 2021)
DHS Provides Initial Progress Report on the Interagency Task Force on the Reunification of Families
The Interagency Task Force on the Reunification of Families, in response to the prior administration’s use of immigration laws to intentionally separate children from their families, submitted its initial 120-day progress report on its accomplishments and ongoing challenges.
CA8 Upholds Denial of Asylum to Honduran Petitioner After Finding Her PSG of Family Membership Was Not a Central Reason for Threats
The court held that the Honduran petitioner did not face past persecution based on her membership in a particular social group (PSG) consisting of her family; rather, the court found she was targeted because she owned land that once belonged to her father. (Padilla-Franco v. Garland, 6/2/21)
The Mixed Messages and Missed Opportunities in Biden’s FY 22 Budget
In this blog post, AILA Government Relations Directors Gregory Chen and Sharvari Dalal-Dheini highlight the mixed messages and missed opportunities on immigration issues in the Fiscal Year 2022 budget released by President Biden.
CA11 Finds Salvadoran Petitioner Whose Family Was Targeted by Gang Failed to Satisfy Nexus Requirement for Asylum
Denying the petition for review, the court held that the Salvadoran petitioner was ineligible for asylum, because the gang that targeted her family had done so only as a means to the end of obtaining funds, not because of any animus against her family. (Sanchez-Castro v. Att’y Gen., 6/1/21)
DHS Terminates the Migrant Protection Protocols Program
DHS announced that after review of the Migrant Protection Protocols (MPP) program, the Secretary of Homeland Security made a determination that MPP be terminated. This announcement does not impact this phased entry strategy into the United States of certain individuals enrolled in MPP.
Supreme Court Rejects Ninth Circuit’s “Deemed-True-or-Credible Rule” as Irreconcilable with the INA
The U.S. Supreme Court held that the Ninth Circuit’s rule stating that, in the absence of an explicit adverse credibility determination by the IJ or BIA, a reviewing court must treat a noncitizen’s testimony as credible and true could not be reconciled with the INA. (Garland v. Dai, 6/1/21)
EOIR Announces Dedicated Docket Process for More Expeditious Immigration Hearings
EOIR issued a memo establishing a dedicated docket to certain individuals in removal proceedings with a focus on the adjudication of family cases as designated by DHS.
Practice Alert: Red Notices and the Application of the Serious Non-Political Crime Bar
AILA’s DOS Committee provides a practice pointer on the increase in ICE’s targeting and detention of non-citizens with INTERPOL Red Notices especially in cases involving asylum applicants.
Law Scholars Urge DOJ and DHS to Adopt Protective Regulations Related to Nonstate Actor Persecution
One hundred law scholars sent a letter to DOJ and DHS on the state protection element of the refugee definition, urging regulations that provide that, once an applicant establishes past persecution, the burden shifts to DHS to show that the state is willing and able to prevent future persecution.
Practice Alert: DHS Secretary Ratifies Rule Removing 30-Day Initial EAD Processing Requirement for Asylum Seekers
AILA’s Asylum and Refugee Committee explains the recent ratification of a rule that removed a 30-day processing requirement for initial EAD applications based on a pending asylum application. The alert highlights the benefits of CASA and ASAP membership as they are exempted from this ratification.
What President Biden’s Budget Should Say on Immigration
AILA's Government Relations directors Greg Chen and Shev Dalal-Dheini lay out what President Biden's budget for FY22 should have in it on immigration issues, flagging detention, representation, immigration courts, USCIS, and the State Department as areas ripe for necessary reform.
CA4 Holds That IJs Have a Duty to Develop the Record in Immigration Court Proceedings
The court held that IJs have a legal duty to fully develop the record—a duty which becomes particularly important in pro se cases, and which extends to proceedings in which noncitizens articulate a proposed particular social group (PSG). (Arevalo Quintero v. Garland, 5/26/21)
CA9 Affirms Denial of Deferral of Removal to Jamaican Petitioner Who Claimed She Suffered Physical Abuse by Former Domestic Partner
Upholding the BIA’s denial of deferral of removal under the Convention Against Torture (CAT), the court held that the record did not compel a finding that it was more likely than not that the petitioner would suffer future torture if she returned to Jamaica. (Dawson v. Garland, 5/26/21)
AILA and Partners Send Letter Requesting DOJ and EOIR to Repeal the EOIR Fee Rule
AILA and partners sent a letter requesting DOJ and EOIR to repeal the EOIR fee rule that imposes draconian fee increases for critical immigration filings, and to ensure that any further rulemaking involving fees in EOIR proceedings does not deny due process or access to asylum to any person.
Practice Pointer: Suggested Handling of Misdirected Mendez Rojas Notices
Following reports of misdirected Mendez Rojas notices, AILA’s USCIS Case Assistance Committee provides guidance for returning such notices to USCIS and information regarding the Mendez Rojas class action.